Federal judge, author of Bush-era torture memo, speaks at UM

A Ninth U.S. Circuit Court of Appeals judge who spoke to law students at the University of Montana on Tuesday on the importance of the Constitution also addressed having authored two of the so-called “torture memos” while working under President George W. Bush.

In 2002, Jay Bybee wrote a pair of memos that concluded that none of the “enhanced interrogation techniques” proposed for terrorist suspects — such as sleep deprivation, stress positions and waterboarding — qualified as torture. At the time, he was an assistant attorney general and head of the Office of Legal Counsel at the Department of Justice.

While most of Bybee’s lecture focused on the Constitution and how it is taught in law schools, he did address the memos during an open question section at the end of his talk.

Bybee said Tuesday it was important to note that when he wrote and signed the two memos, he had been asked to answer “advisory questions” and relied entirely on a series of “theoretical” situations laid out by the CIA and whether they counted as torture, a standard that had never been interpreted by a court.

He also stressed that one of his memos included the fact that the CIA told him that suspects wouldn’t be subjected to repetition of the interrogation methods, and that he wrote it with the understanding there would be “no repetition.”

That’s slightly different than what the memos actually said, which is that suspects wouldn’t be put under “substantial” repetition during what the CIA had termed an “increased pressure phase” of interrogating an Al Qaeda prisoner. Bybee did write in the memo that if the facts — including substantial repetition of the techniques — were to change, his advice that they didn’t qualify as torture would “not necessarily apply.”

Bybee told the group on Tuesday that they could look at the history to determine whether substantial repetition had occurred. He didn’t directly answer a later question of whether he would still consider the interrogation methods to not be torture, saying only that he was one of four different people asked to submit a memo and came to that conclusion. With the information they had at the time, Bybee said, “we had done the best that we could.”

After being nominated by Bush, Bybee was confirmed to the Ninth Circuit in March 2003.

Professor Anthony Johnstone, who introduced Bybee on Tuesday, noted two opinions that judge has written during his time on the Ninth Circuit that had a major impact on Montana — a 2012 decision that stayed a lower court’s order striking down state campaign contribution limits and a 2017 opinion upholding nonpartisan judicial elections.

As for the U.S. Constitution, Bybee’s lecture focused on the role it plays in Congress, the presidency and the way it is taught in law schools.

In looking through a series of textbooks commonly used in law schools, Bybee said he often found that a copy of the Constitution was not included, or if it was, it was often located near the back in an appendix.

Because the legality of so many pieces of federal legislation end up being decided by the courts, Bybee said members of Congress spend nearly no time when drafting and passing laws discussing whether their actions are constitutional. Instead, he said, they rely on the court system as a “regulatory backstop” to straighten out later what is and isn’t allowed.

This has led to members of Congress being more willing to take the most aggressive stances for political ends, knowing that they can always defer onto the courts any blame for what actually stands up to constitutional scrutiny, the judge said.

Similarly, Bybee said he feels that law schools have changed to teaching law as viewed through the lens of judges and court rulings, studying case examples of matters that have already been tried by the judiciary instead of taking abstract concepts and applying the Constitution to determine the legality.

“We don’t read the Constitution today. Instead, we ask what the courts have said,” he said.